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U.S. Department of Transportation
Federal Highway Administration



N 1320.6
September 28, 1990

  1. PURPOSE. To issue procedures for notifying the submitters of confidential commercial information that such information has been requested pursuant to the Freedom of Information Act (FOIA).


    1. Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, dated June 23, 1987.

    2. Title 49, Code of Federal Regulations, Part 7, Public Availability of Information; Freedom of Information Act Regulation - Section 7.57, Request for Business Information Submitted by a Private Party.

    3. Federal Acquisition Regulation (FAR) 15.407, Solicitation Provisions; 15.413, Disclosure and Use of Information Before Award; and 52.215-12, Restriction on Disclosure and Use of Data.

    4. Transportation Acquisition Regulation (TAR) 1215.413, Disclosure and Use of Information Before Award.


    1. Action Office - the Federal Highway Administration (FHWA) office which is responsible for issuing or recommending a determination on a FOIA request for records that include confidential commercial information.

    2. Confidential Commercial Information - records provided by a submitter to, and in the possession of the FHWAcontaining material that may be exempt from release under exemption 4 of the FOIA, 5 United States Code (U.S.C.) 552(b)(4), because the submitter designated the information as confidential or because the FHWA otherwise has reason to believe that disclosure could reasonably be expected to cause substantial competitive harm to the submitter.

    3. Submitter - the person or entity who submits confidential commercial information to the FHWA, including, but not limited to, a corporation, State or local government, or foreign government.

  4. APPLICABILITY. The notification requirements of this Notice shall not apply if:

    1. The action office determines that the information should not be disclosed;

    2. The information lawfully has been published or otherwise made available to the public; or

    3. Disclosure of the information is required by law (other than 5 U.S.C. 552).


    1. Declaration of Confidentiality

        (1) Pursuant to FAR 15.407 Solicitation Provisions, contracting officers are required to insert in solicitations a provision that notifies offerors who include in their proposals data they do not want disclosed to the public for any purpose, to mark these proposals accordingly. Offerors are not required to designate restricted material at the time of submission, but the Government assumes no liability for the disclosure of information that has not been so designated.

        (2) Submitters may designate confidential commercial information at the time information is submitted to the FHWA or reasonable time thereafter, including when the FHWA notifies the submitter that such information has been requested pursuant to the FOIA.

        (3) The submitter's designation is a recommendation to the FHWA and must be independently evaluated by the FHWA to determine the applicability of exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

    2. Initial Notification

        (1) Upon receipt of a FOIA request for records that include confidential commercial information which the action office believes may be releasable under the FOIA, the action office will promptly notify the submitter in writing using certified mail -return receipt requested and afford him/her the opportunity to object to disclosure of the information and to state the basis for the objection. The written notice may be preceded by a telephone notification to minimize delays in processing the FOIA request. The submitter shall be asked to explain in writing all grounds for withholding the information, including how release of the information could reasonably be expected to cause competitive harm to the submitter. The submitter shall be advised that the written response must be received by the FHWA no later than 10 working days after the date of the written notification and that failure to respond in writing shall be considered the equivalent of "no objection to disclosure."

        (2) The submitter may provide objections and the basis for them initially by telephone, but must also submit the objections in writing. The date of the initial contact and any followup contacts by telephone, as well as the name of the submitter or his/her representative and the submitter's response shall be recorded and a copy of this record retained with the FOIA response file.

        (3) The requester should be concurrently advised of the notification to the submitter.

        (4) The action office shall consider carefully the submitter's objections and specific grounds for nondisclosure in the light of the provisions of exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). The burden of proof to justify nondisclosure resides with the submitter. The submitter has the right to file in the District Court to prevent the disclosure of information that he or she considers confidential; in the event such a filing is made, the process to disclose such information should be stopped and the matter referred to legal counsel.

        (5) If it is determined that the information will be withheld from the requester, a FOIA determination letter will be issued and no further action under these notification procedures is necessary.

        (6) Submitter information that has been disclosed based on a written response from the submitter may be disclosed in response to additional requestsfor the same information without further notification to the submitter.

    3. Notification of Decision to Disclose

        (1) The submitter shall be provided a written notice of a decision to disclose the information over the submitter's objection. Such notice shall be sent at least 10 working days prior to the intended disclosure if by regular mail or 5 days prior to disclosure if by express mail, electronic mail, or facsimile transmission. The notification shall include:

          (a) a statement of the reasons for which the submitter's disclosure objections were not sustained;

          (b) a descriptions of the commercial information to be disclosed;

          (c) a specific disclosure date; and

          (d) a statement substantially as follows: "The decision to release information provided by you (your firm) as stated above is administratively final. You (your firm) have the right to pursue appropriate judicial remedies."

        (2) The requester shall be concurrently advised of the decision pursuant to paragraph 5c(1). No disclosure of records to the requester shall be made until the appropriate time period in paragraph 5c(1) has elapsed.

    4. Notification of Requester Lawsuit To Compel Disclosure. The action office shall promptly notify the submitter of any requester lawsuit seeking to compel disclosure of confidential commercial information provided to the FHWA by the submitter.

T. D. Larson
Federal Highway Administrator

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